R v Tangi (No 12)

[2020] NSWSC 547

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Tangi (No 12) [2020] NSWSC 547
Hearing dates:	20-21, 25-29 November, 2-6, 9-13, 18-20, 23-24 December 2019, 2 January, 8 May 2020
Date of orders:	13 May 2020
Decision date:	13 May 2020
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Sentenced to imprisonment for a non-parole period of 22 years and 6 months, commencing 8 July 2017 and concluding 7 January 2040, with the remainder of term of a further 7 years and 6 months, concluding 7 July 2047.
Catchwords:	CRIME – SENTENCE – murder – prisoner murdered fellow inmate – intention in inflict grievous bodily harm – planning – assessment of objective seriousness – sentence imposed following finding of guilt by jury after trial – no remorse
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5 Crimes Act 1900 (NSW), s 18(1)(a)
Cases Cited:	Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Abraham Ryan Tangi (Offender)
Representation:	Counsel: P Hogan (Crown) G Wendler (Offender)   Solicitors: Director of Public Prosecutors (NSW) (Crown) Universal Lawyers (Offender)
File Number(s):	2017/242644

REMARKS ON SENTENCE

1. HIS HONOUR: Abraham Ryan Tangi, the offender, was convicted by a jury of murder, the most serious crime in the criminal calendar. Murder is an offence under s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for murder is life imprisonment. There is also a prescribed standard non-parole period of 20 years’ imprisonment, each of which are guideposts in the fixing of a sentence. The assault occurred on 19 June 2017. The deceased died on 29 June 2017.

2. The murder occurred while the offender was incarcerated at the John Morony Correctional Complex and the deceased, Zaydoun Al-Qaseer, was a fellow prisoner. The factual background to the offence and the conduct can be summarised briefly.

Facts

3. The deceased, was 24 years and 5 months’ old at the time of his death. He was significantly smaller and lighter than the offender. And he was less fit.

4. On or about 18 June 2017, the offender and the deceased had an oral argument. The argument continued from time-to-time until the assault the following day. As a result of one of the arguments, the offender was observed by his cellmate to be stressed and appeared to be extremely angry. There were two further incidents involving the offender and the deceased, after the initial oral argument and earlier in the day of 19 June.

5. That day, the offender waited for the deceased outside Cell 24 for some minutes, having prearranged to meet with the deceased and the offender ushered the deceased into his cell.

6. Michael Palalagi stood outside Cell 24, the offender’s cell, where the assault occurred, and, on the version of events which I accept, held the Cell door closed so that no one was able to enter.

7. The Crown submits that the presence of Mr Palalagi and two other inmates was organised by the offender. That is certainly an inference that is available and which I am prepared to draw.

8. The offender and the deceased were the only persons inside Cell 24 at the time the deceased was assaulted. The offender stomped on the head of the deceased with his foot, probably twice, and at least once on the left shoulder.

9. Consistent with the verdict of the jury, the intention of the offender, in stomping on the deceased’s head, was to cause grievous bodily harm or really serious injury. That intention is sufficient to support the crime of murder.

10. When the offender left the cell, he was described as being in a highly agitated state. Based upon the evidence provided, I am also satisfied that he was distracted.

11. It is unnecessary to set out the full extent of the fatal injuries suffered by the deceased that were sustained in the assault, but they included a subdural haemorrhage; a right scalp haematoma; and a right temporal fracture extending to the base of the skull in the right middle cranial fossa. The deceased was treated by Corrective Services staff and then Ambulance officers on site, transported to hospital and then died on 29 June 2017.

12. The injuries were inflicted by at least one significant stomp on the head, possibly two, and a further stomp on the body. I draw the inference that the stomping was occasioned when the deceased was already on the floor, by which time the offender would have already achieved the aim of asserting his authority, if that were his motive for the assault.

13. There is some evidence to the effect that the deceased had a role in the supply of drugs in the John Morony Correctional Complex, or more particularly at Archerfield House. The offender was the Head Sweeper in Archerfield House, which was a position of responsibility.

14. It is suggested, and I accept, that the disagreements between the offender and the deceased related to the deceased’s view that he was a sweeper, with which, it seems, the offender disagreed and, further, the deceased questioned the offender’s authority. But there are a number of possible motives for the disagreement.

15. The Crown relies upon significant planning for the offence. The evidence supports the irrefragable inference that the offender intended to confront the deceased and assault him, for which there was significant premeditation.

16. The altercation between the two men, prior to it moving into Cell 24, involved the offender grabbing the deceased by the shirt front, and the deceased responded by grabbing the offender, which may have exacerbated the offender’s temper. This, and what happened in the Cell, may have resulted in a much more serious assault than was planned and, on that reasonable hypothesis, led to the offender causing, with the intention to do so, the grievous bodily harm (or really serious injury) which caused death.

17. The Court cannot lose sight of the fact that the fatal assault occurred in a prison where inmates are accommodated in close quarters, often with violent undertones. In the John Morony Complex, as with others, it seems that there were tensions between different racial groups. The deceased was of Middle Eastern background and the offender was an Islander, which may have exacerbated the tensions that otherwise existed between them.

18. The conclusion that the Court reaches is that the inflicting of grievous bodily harm was likely to have been planned. However, the Court is not in a position to be able to reach that conclusion beyond reasonable doubt. There is a reasonable hypothesis that while the confrontation was planned, as was the assault, the infliction of grievous bodily harm, and the formulation of the intention to do so, was opportunistic and arose from the nature of the confrontation, as it developed in the cell. Therefore, I do not treat the planning of the assault which occasioned grievous bodily harm, and led to the death of the deceased, as a factor to be used adverse to the offender or in aggravation of the sentence to be imposed. I do regard the planning of the assault as a matter aggravating the murder.

19. There was some evidence adduced relating to a written confession by the offender during a later period of custody. I do not accept that the offender was likely to make such a confession and I reject that evidence, given the warnings as to this kind of evidence which I bear in mind.

20. However, I accept the evidence otherwise adduced from other prisoners who saw the events that occurred on 19 June 2017. One issue, ultimately of little moment, arises from an inconsistency between the evidence of the prisoner Greg Morley, the Prison Officer Narelle Mills and the evidence of Witness D, as to which inmate assisted Mr Atiq-Ur-Rehman to the phone.

21. I take into account the warning I gave to the jury as to the prisoner witnesses and, in particular, the prisoner who maintains the offender confessed to him in writing. Nevertheless, and notwithstanding the dishonesty in which, it seems, Witness D was involved and that led to his imprisonment, I accept that Witness D assisted Mr Atiq-Ur-Rehman to the phone and I accept his oral evidence notwithstanding his earlier denial of having seen anything.

22. A proper analysis of the evidence of Mr Atiq-Ur-Rehman and a very close analysis of the CCTV footage from each of the cameras then in existence corroborate the fact that Witness D did assist Mr Atiq-Ur-Rehman back to the phone.

23. At this point, I should also state that, notwithstanding my warning to the jury about the evidence of police officers in relation to unrecorded statements by three witnesses, I accept, for sentencing purposes, that the statements were made and were truthful. It seems, in the scheme of the evidence admitted at trial, that those three statements are wholly consistent with all of the other evidence that I accept. The effect of the evidence, overwhelmingly, is that two people, the offender and the deceased, entered Cell 24 and one person, the offender, left the cell. Shortly thereafter, and without any other person going into the cell, the deceased was found injured on the floor of that cell.

Subjective Factors

24. It is necessary to deal with the offender’s subjective circumstances. He has previous criminal convictions in New South Wales, including convictions for assault occasioning actual bodily harm in 2014, for which he was sentenced to a bond. There was a further domestic violence offence involving assault occasioning actual bodily harm and there were other domestic violence offences in 2016, for which he was sentenced to a term of imprisonment.

25. The offender is a New Zealand citizen of Islander descent. His Special Category Visa 444, being a Temporary Visa, allowing a New Zealand citizen to visit, study, stay and work in Australia, was cancelled on 27 July 2016 and the offender, on that date, became and remained an unlawful non-citizen.

26. At the time of the offending, the offender was 28 years and 11 months’ old. He is 194 cm tall and weighed, at that time, 110 kg. He is now 31 years of age. As already stated, the deceased was of Middle Eastern background, was 24 years and 5 months’ old at the time of his death and was significantly smaller and lighter than the offender.

27. At the time that this offence was committed, the offender was in custody on remand, bail refused, on 9 June 2016 in respect of offences that were committed in 2015 and earlier in 2016. Those offences attracted a sentence imposed on 21 August 2019, of imprisonment for 4 years and 6 months, expiring 8 December 2020, with a non-parole period of 3 years and 4 months, expiring 8 October 2019.

28. In relation to the offence for which the offender is now to be sentenced, committed relevantly on 19 June 2017, the offender was refused bail and, possibly as a consequence, was not granted parole for the earlier offences. Nevertheless, it seems that, relevantly, the appropriate commencement date for the sentence to be imposed for murder should be no later than 8 October 2019.

29. Before the Court, there is a Sentencing Assessment Report, dated 25 February 2020, which notes that the offender presented with a negative attitude and declined to be interviewed. There was a further Sentencing Assessment Report, dated 29 April 2020, which repeats that the offender has a history of violent offending that has escalated over time.

30. During his time in custody, the offender has incurred eight institutional misconduct charges for assault, fighting, failure to comply with routine and damaging property. His most recent charge, in December 2019, was for possession of an offensive weapon.

31. The offender has not and did not, for the purposes of the second Sentencing Assessment Report, assume responsibility for his actions referring to “the murder they put on me, I do not agree with it”. Further, the offender denied any aggressive or violent tendencies and stated that if he had ever been aggressive, it was due to being “provoked”.

32. Further, the Sentencing Assessment Report of 29 April 2020 was unable to canvass the possibility of the offender undertaking interventions to address his antisocial behaviour and to engage in community service work, because he refused to comply with interviews intended to garner that information.

33. A more complete history is in the Report of the Consultant Clinical Forensic Psychologist, Ms Kim A Dilati, who, in the Report dated 9 March 2020, set out the presentation, family and developmental history, educational and employment history and relationship history of the offender. The offender was born in San Bernardino, California in the United States. He is the second born of four siblings, with three sisters. He had a significantly transient childhood experiencing grief, loss and emotional deprivation. His parents are of American-Tongan background who met and married in Hawaii.

34. After migrating to the United States, his parents migrated to Australia in 1988 when the offender was a few months old. His mother is a nurse and his father was employed as a dairy farmer for over 20 years. The offender’s sisters are currently employed in the medical and health industry. In 1992, his mother suffered from breast cancer and underwent a mastectomy.

35. At the age of six months, due to the financial difficulties which his parents were then facing, the offender moved to Tonga with his maternal grandparents who raised him until he was nine years of age. His grandmother was a primary and high school teacher and his grandfather owned a lucrative family business of importing/exporting bananas. The offender reported, to the Psychologist, that he has close bonds with his family in Tonga and New Zealand. They were in respected government positions and he described them as “affluent”.

36. The offender believed his grandparents were his parents until the age of nine, when he was reunified with his biological parents. This resulted in confusion, anger and grief. The offender was forced to reside with his parents and sisters in New Zealand, against his will. This was a result of his grandmother’s deteriorating health.

37. There is significant collateral evidence of his attachment to his grandparents and a degree of reluctance to reside with his parents in New Zealand. As a consequence of that, he suffered social withdrawal, anxiety and rebelliousness.

38. The offender stated to the Psychologist that the level of trauma and loss that he suffered as a consequence of leaving his grandparents was significant and that this was never addressed, because his parents minimised the extent of his distress. The offender’s grandmother passed away in 1999 which had a “very big effect” on the offender.

39. While he migrated to Australia with his parents in 2000, he continued to conduct a distant relationship with his grandfather and had face-to-face contact with him approximately twice every five years. In 2014, his grandfather died, but he could not attend the funeral due to difficulties in Australia with his relationship and problems with custodial arrangements with his children.

40. There is no known family history of mental health issues, substance use or criminality. Further, the offender denies a history of childhood victimisation and denies any sexual, verbal, emotional or physical abuse. He also denies the presence of any learning difficulties during his childhood.

41. There is no evidence to suggest that the offender had a history of conduct problems, oppositional behaviour or early callous unemotional traits.

42. From the age of 15, the offender gravitated towards negative peers with increased shoplifting, antisocial behaviour such as evading fares, robbing people of their wallets, money and mobile telephones. His criminal history dates from the age of 15.

43. That criminal history, which, as earlier stated, includes a number of assault charges, also includes aggravated robbery as a juvenile.

44. The offender had a disrupted educational history although there was increased stability when he resided in Tonga. He worked in an infrastructure company for Hallmark Industries and worked night shifts at the same time. The offender assisted his parents who were experiencing financial hardship and worked long hours for that purpose. At one stage, he moved to Melbourne to preach for the Mormon Church.

45. Further, the offender had a tumultuous relationship history. His first wife and he had two children and separated after he discovered what he says was her infidelity. According to the offender, at least one of the assault charges related to him striking his first wife with an extension cord after he discovered her alleged infidelity. There was an Apprehended Violence Order (hereinafter “AVO”) issued in relation to that relationship and he was convicted of a contravention of that AVO.

46. In 2014, the offender entered into another relationship and the couple then had the offender’s second daughter. Again, there was physical violence perpetrated by the offender against his then partner, which resulted in the relationship terminating.

47. In 2015, he entered his third relationship and there was another child born in November 2016. At the time of the Psychologist’s assessment, the offender was single with four dependents with whom he has limited contact. He was charged with assault occasioning grievous bodily harm and common assault towards his son, who sustained a fractured eye socket. He denied hurting his son.

48. There is no history of substance abuse. Nor is there any current issue relating to medical difficulties.

49. The Psychologist conducted psychometric assessments, the details of which I do not repeat. Using both static and dynamic risk assessors, each of which has their own limitations, the Psychologist calculated that the offender scored within the high-range of risk of future violence. Further, the offender scored within the moderate range of psychopathy, which can indicate rehabilitation is possible but the offender, according to the Psychologist, will require structured and comprehensive treatment planning, in addition to supervision and monitoring. The Psychologist then said:

“Mr Tangi presents as an individual with limited shortcomings. He was evasive at times in his reporting of symptoms and expressed difficulties in articulating his emotional experience during his childhood and within romantic relationships. He denied the presence of depression, psychosis, anxiety, or suicidal or homicidal ideation or plans. He acknowledged difficulties with anger and irritability as well as impressionability over the years. He denied the presence of somatic complaints, difficulties with sleep or appetite, or persistent worries. There was no evidence of a history or difficulties with attention, concentration or Attention Deficit Hyperactivity Disorder (ADHD).”[1]

1. Report of Kim A Dilati dated 9 March 2020 at [34].

50. In summary, the Psychologist reported that the offender’s problematic trajectory began with a lack of validation after he was traumatically separated from his grandparents and that it is likely that the offender also suffered from early mental health conditions such as anxiety, depression, low self-esteem and self-worth which were undiagnosed. Further, the Psychologist expressed the opinion:

“In order to compensate for his fractured identity, perceived powerlessness, hopelessness, inferiority, anger, confusion and to cope with negative feelings, Mr Tangi established a pattern of risky, impulsive and antisocial behaviours which served as tension reduction behaviours. His anger was displaced, he gravitated towards negative peers who supported his behaviours and he engaged in repeat offending despite the consequences.”[2]

2. Report of Kim A Dilati dated 9 March 2020 at [36].

51. The Psychologist also stated the following at [31] of her Report:

“Mr Tangi’s results were elevated in the Mania scale suggesting he is increasingly restlessness [sic], impulsive, high-energy, hot-headed, presents with an inflated self-esteem, overvalued ideas, interpersonal overconfidence, over involvement, and increased motor activity. The antisocial features scales was also elevated suggesting a history of marked antisocial conduct, hostility, impulsivity, a history of conduct problems, and may present as narcissistic. He reported supportive connections with family and friends, acknowledged he faces a level of distress which is overwhelming, and had a self-assured, confident, forceful, self-reliant and controlling interpersonal style however contrastingly was warm, sympathetic, supportive toward others, eager to be liked, hard to be critical of others, has a trusting nature and readiness to forgive faults of others.”

52. The offender is classified as A2, in the prison system, namely, Extreme High Risk. He is closely monitored by prison guards and is a non-association prisoner. That non-association is exacerbated by and exacerbates the difficulties currently being suffered as a consequence of the steps taken by prison authorities relating to the pandemic.

53. It is clear that the only close relationship he has is with his mother, who is the only visitor to him in gaol. Those visits have ceased as a consequence of the steps taken relating to the current pandemic.

54. He is also a person whose continued incarceration is risky as a consequence of the previously-mentioned racial tensions and he has, allegedly, been the subject of threats of retribution by some prisoners of Middle Eastern background. The offender was informed by Correctional Services that a bounty was placed on his head by other inmates, initially at $10,000, and later increased to $20,000.

55. The COVID-19 pandemic issues, of themselves, are not particularly troubling for prisoners. No prisoner, on the current material before the Court, has contracted the Coronavirus. One Health Worker at Long Bay Hospital has tested positive, but, thankfully, there are no outbreaks of COVID-19 in the prison system.

56. This is as a result of the early and strict conditions imposed by Correctional Services. Indeed, on one view of the evidence, assuming current restrictions stay in place, inmates are less at risk than members of the community.

57. Nevertheless, the effect of the strict conditions that have been imposed and that has led to the absence of Coronavirus in the prison system is also that the conditions of incarceration are much more difficult. While one can hope that those conditions will be temporary, some restrictions will be in place for a significant amount of time. The Court has before it a World Health Organisation Report on the prevention and control of COVID-19 in prisons and other places of detention dated 15 March 2020. Further, it cannot be said with any precision when restrictions will ease or when all restrictions will cease.

58. I accept that the combination of the COVID-19 restrictions and the limited visitation renders the incarceration of the offender more onerous and it will remain more onerous for some period of time.

Consideration

59. In sentencing an offender convicted of murder (or any other serious offence), the Court is required to assess the objective seriousness of the offence, within the range of conduct with which offences of that kind are concerned. Thus, even, as here, where one is speaking of murder, as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where in the range of seriousness that applies to murder offences, this offence fits.

60. While the maximum sentence for the offence, which is life imprisonment, is a guidepost in the setting of an appropriate sentence, life imprisonment is, according to the legislation, reserved only for the worst category of offences of murder. Whether a particular offence and offender fit into that category is not ascertained by imagining conduct that could be worse, but objectively considering the entire circumstances of the offence and the offender and ascertaining where they fit in the range of murders that may be committed. In doing so, the Court assesses objectively the features of the offence and the circumstances of its commission.

61. The purposes of sentencing are contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and include: the protection of society; personal and public deterrence (often referred to as specific and general deterrence, respectively); retribution; and reform. Each of those purposes must be considered and assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence charged. Each of the purposes may pull in different directions and it is the function of the Court to determine a sentence that best achieves the purposes that the legislature and the courts have established. [3]

    3. Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

62. In this case, the Crown conducted its case as, and the jury verdict is consistent with, a murder occasioned by an intention to cause grievous bodily harm or really serious injury. I accept that, as a consequence, within the serious crime of murder, such an intention, in this case, renders the offence not in the worst category of offending. The offence would be much more serious and the culpability of the offender much more serious, if the Court were to have found, or were able to find that the offender intended to kill the deceased.

63. The criminal history prior to this offending, which includes significant offences of violence, shows that specific deterrence is an important feature in determining the sentence to be imposed on this offender. I am prepared to accept, on the balance of probabilities, an extrapolation of the views expressed by the Psychologist, that, to some degree at least, the prisoner’s conduct is a feature of his disempowerment and social exclusion from the very close relationship he had with his grandparents and the inability or unwillingness to treat the distress occasioned by the separation.

64. Properly treated, that would allow some allowance for the possibility of rehabilitation, but, as presently indicated, those prospects of rehabilitation are neither good nor even reasonable. The offender has little or no insight into his offending or behaviour.

65. The overwhelming aspect of the context of this offence is that it occurred in prison. The close physical environment of the prison system and the vulnerability of inmates in the system, together with the need to ensure discipline, means that offences that occur in prison need to take that context into account. In this case, general deterrence looms large.

66. The objective seriousness of the offence, given its context and excluding subjective factors, is above the mid-range of seriousness, but not in the worst category. It rises above the mid-range because of the planned nature of the confrontation in the context of the prison system. A determinant prison sentence will be imposed. Plainly, as conceded by the offender, or on his behalf, a full-time custodial sentence is warranted. [4]

    4. Section 5 of the Crimes (Sentencing Procedure) Act.

67. There is no evidence of remorse or contrition. The sentence is being imposed after a trial in which guilt was denied. There is no post-verdict expression of remorse.

68. The offender has a good work ethic, he has worked in a voluntary capacity for his church and there is a reference to his character and work in the church, which the Court takes into account to his credit.

69. As already mentioned, at the time of the commission of this offence and at the time that the sentence is imposed, the offender was either on remand for, or serving the sentence imposed because of, an offence of assault occasioning actual bodily harm and stalk/intimidate with intent to cause fear of physical harm. The offender was imprisoned for those offences and had imposed upon him an aggregate sentence of 4 years and 6 months, including a non-parole period of 3 years and 4 months concluding 8 October 2019.

70. There is a requirement to factor the principle of totality into the sentence to be imposed. That may be done a number of ways, but most commonly it is done by fixing a sentence that is considered to be appropriate and utilising the level of concurrence and accumulation with the other sentence being served, to effect a total sentence which takes into account the total criminality of all of the offences for which he is serving full-time custody.

71. As earlier stated, the main guideposts for the sentence are the purposes of sentencing, the principles of sentencing and the legislated maximum penalty and standard non-parole period. The maximum penalty is life imprisonment. The standard non-parole period is 20 years’ imprisonment.

72. The Court should not impose a sentence that is crushing on a 31-year-old, but must also impose a sentence that properly reflects the need for specific deterrence, general deterrence, retribution and punishment. The intuitive synthesis involved in sentencing may allow for different judicial officers to arrive at different results.

73. Nevertheless, the circumstances of this offending, the context of it being an offence in prison, the need for specific deterrence and for general deterrence, assessed together with the possibility of rehabilitation and the subjective factors to which the Court has already referred, requires a full-time custodial sentence of some significance. The Court will impose a sentence of full-time custody, being a head sentence of 30 years and a non-parole period of 22 years and 6 months.

74. There is no warrant for a finding of special circumstances and the 7 years and 6 months for which the offender will be eligible for parole is sufficient time to allow his rehabilitation in the community with appropriate supervision.

75. The issue of totality is a difficult one. The conduct which led to the death of the deceased occurred on 19 June 2017 and the death occurred on 29 June 2017. The conclusion of his previous non-parole period was 8 October 2019. The offender was charged with the murder on 8 August 2017.

76. If I were sentencing for the previous offences at the same time that I was sentencing for murder, I would impose some accumulation in relation to those previous sentences, which are serious. I do not consider that the current sentence should be fully cumulative on the non-parole period of the previous sentences. I do consider that 1 year and 1 month of the non-parole period of the previous aggregate sentence should accumulate to reflect the additional criminality. The current sentence will commence on 8 July 2017.

Sentence

77. Abraham Ryan Tangi, please rise.

1. You are convicted that on 29 June 2017 you did murder Zaydoun Al-Qaseer at the John Morony Correctional Complex.

2. You are sentenced to a non-parole period of 22 years and 6 months’ imprisonment, commencing 8 July 2017 and concluding 7 January 2040, with the remainder of term of a further 7 years and 6 months, concluding 7 July 2047.

3. You are first eligible for parole on 7 January 2040.

4. I am also required to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

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Endnotes

Decision last updated: 13 May 2020